How to Handle Frivolous Lawsuits Alleging Song Copyright Infringement

The methodology employed by an unscrupulous plaintiff ' sometimes aided and abetted by an equally unscrupulous counsel ' may vary, but the prototypical scenario is fairly predictable. A claim is asserted, generally for very substantial damages, alleging that the defendant songwriter infringed a pre-existing song authored by the plaintiff. In the majority of frivolous suits, the plaintiff's song has never been commercially released or otherwise exploited, but claims are made that the plaintiff's song was written prior to the defendant's composition, that it was sent to various publishers and record companies and that the defendant must have heard the song at the offices of one or more of those recipients. Indeed, the script will almost always include the publisher and any labels with which the defendant is known to have some historical or ongoing relationship.

Assuming that all of these elements are wholly fabricated, the obvious question is, why not simply move to dismiss the claim? Unfortunately ' and here is where an often arduous and unjust legal journey begins ' such cases are generally not subject to summary dismissal. It is hornbook law that questions of fact must be left to the triers of fact; therefore, motions to dismiss can only be granted where the case can be resolved solely on issues of law. A typical claim of copyright infringement is almost entirely factually predicted: Are the two songs substantially similar; when was each song written; was there access by the defendant songwriter to the plaintiff's composition? Indeed, an emerging trend in the Second and Ninth federal circuits strongly suggests that where a mere allegation is made that the two songs are 'strikingly similar' (a cut above the traditional yardstick of 'substantial' similarity), the case cannot be dismissed. The expert witnesses must, under these circumstances, be afforded the opportunity to debate the issue. This concept also elevates the importance of the respective times of creation of the two songs, yet another critical, and purely factual, issue.